Time Spent as a Full-Time Substitute Teacher Does Not Count Toward Tenure

 May 31, 2013

By Parker Himes

Years spent as a full-time substitute teacher do not count toward tenure.  That was the decision reached by the U.S. Court of Appeals for the Seventh Circuit in the recently decided case of Harbaugh v. Board of Education of Chicago.

Candace Harbaugh taught as a full-time substitute for the 2003-2004 school year at James G. Blaine Elementary School, which is operated by the Chicago Public School system (“CPS”), before becoming a probationary, tenure-track teacher the following year.  Harbaugh remained at Blaine for the 2004-2005 school year before teaching at another CPS school for the 2005-2006, 2006-2007, and 2007-2008 school years.  In March 2008, the school’s principal recommended that her contract not be renewed, a recommendation the Board of Education accepted.  Harbaugh could not find employment in another school in the CPS system.

 Following her termination, Harbaugh sued the Board alleging that she had achieved tenure at the beginning of the 2007 - 2008 school year and was entitled to the employment protections afforded to tenured teachers.   If Harbaugh had achieved tenure at the beginning of the 2007-2008 school year, under Illinois law, Section 34-85 of the School Code, she could be fired only for cause. Harbaugh claimed that her year spent as a full-time substitute teacher should be applied to the number of years required to achieve tenure.

 While acknowledging that Harbaugh’s functions, responsibilities, and salary as a full-time substitute were almost identical to her functions as a probationary teacher, the Court held that Illinois law distinguishes between the two classifications. The Court concluded that many aspects of employment, certification, hiring, and firing differ between substitutes and probationary teachers.

 Importantly for the Court, probationary teachers must meet far more rigorous certification requirements than do substitutes.  The Court held that the provisions of Article 34 of the Illinois School Code, which applies exclusively to CPS schools and mirrors Article 21, designates substitute teachers as a type of non-tenure track teacher who works full-time at one school like tenure-track teachers, “only with less seniority and without potential job security.”

 Accordingly, the Court held that Harbaugh’s year spent as a full-time substitute teacher did not count toward the four years required to achieve tenure.  Therefore, since she had not achieved tenure, she was not entitled to a hearing before the Board terminated her employment.

 If your district finds itself dealing with a teacher employment issue, we urge you to contact an attorney at the Firm so we can help you reach a favorable resolution.